This is in response to your September 30, 2003 letter concerning the paraprofessional education provisions of Title I of the Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind (NCLB) Act. Specifically, you questioned the application of those provisions to artists who deliver instruction in public schools.

As indicated in my earlier letter, the question of whether an artist working in a school is a "teacher" or a "paraprofessional" and whether the artist must meet Title I qualification requirements can only be answered based on the specific circumstances of each artist's individual situation. I identified several factors that a district would need to take into consideration to determine whether an artist is subject to the teacher or paraprofessional qualification requirements. One of those factors is whether the individual is an employee of the school district. In general, the question of whether an individual is considered an employee of a school district when that person's salary is paid with a combination of private and public funds is a local determination. For Title I purposes, an individual is considered to be an employee of the school district and working in a program supported by Title I funds, when a school district hires the person to provide instruction or instructional support in a Title I targeted assistance school and the person's salary is paid, in whole or in part, with Title I funds. An individual is considered to be an employee of the school district if the person is hired by the school district to provide instruction or instructional support in a Title I schoolwide program school, without regard to the source of funding for that person's salary. This is because in a schoolwide program, Title I funds are used to upgrade the curriculum of the entire school--all staff are considered to be Title I staff and all students are Title I students. Once a district makes a determination that an individual is a teacher of a core academic subject or is a paraprofessional consistent with the statute, guidance, and regulations, then the qualification and program requirements apply, as appropriate.

With regard to your second set of questions, Federal funds must be expended for the purposes and under the conditions specified in the law authorizing the funds. Similarly State and local funds must be spent in accordance with the authority that generated those funds.

As for the distinction between "instruction" and "enrichment" for the purposes of determining if Title I professional qualifications requirements might apply, the key is the

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content being provided. As you correctly point out, instructional activities can take place in a school that are not part of the ongoing instruction in core academic subjects. The following question in the new Improving Teacher Quality guidance may be useful to you in thinking about this issue:

C-21. How do the teacher quality requirements apply to individuals working in extended learning time programs?

If services offered outside of regular school hours in a Title I extended learning time program provide instruction in core academic subjects designed to help students meet State or local academic standards, the persons providing such core academic instruction must meet the highly qualified teacher requirements. In extended learning time programs (which can include summer school), the school's regular teaching staff extends or continue the school's instructional day using the same or similar curricula, and therefore they must be highly qualified. However, if the instructor is not an employee of the school district, the teacher quality requirements do not apply.

An extended learning time program that offers core academic instruction because an LEA has determined that particular students need additional time to learn to State standards can be distinguished from an after-school program offering academic enrichment, tutoring and homework assistance, including supplemental educational services under Section 1116 of No Child Left Behind. In the latter case, the highly qualified teacher (and paraprofessional requirements) do not apply. It is up to the LEA to draw the distinction between extended time and enrichment programs.